Next Two Congressional Hearings On Copyright Reform Show The Exact Wrong Approach

from the setting-it-up-as-a-fight dept

As Congress kicked off its latest effort towards comprehensive copyright reform, I noted some talking points that raised a really big concern: many in Congress appeared to suggest that copyright reform was a fight between "content creators" and "technology companies" and that any eventual result would be a balance between what those two sides were squabbling for. This is very concerning for a variety of reasons. First off, neither of those groups should be the primary concern of lawmakers. The Constitutional mandate for Congress when it comes to copyright is to "promote the progress of science" (the useful arts stuff is about patents...). The key beneficiaries are to be the public.

So, the first concern, obviously, is that if the focus is on "content creators" on one side and "the tech industry" on the other, the public is not represented. That's a really bad idea. The second problem with setting it up as a battle between those two sides is that it suggests that what's good for one side is bad for the other, and this is a push and pull whereby when one side wins something, the other loses, and the "ideal" result is one where both have to compromise. Thus, you get talk about how copyright law needs to "balance" the interests of "both sides." Again, this ignores that there are a lot more than "two" sides here, but more importantly it ignores the idea that this is not a zero sum game.

The history of the tech and content industries shows that -- while they often squabble about things -- success goes hand in hand. Each and every major innovation from the tech world has resulted in greater opportunity for content creators. It's getting old to say this over and over and over again, but a mere four years after Jack Valenti told Congress that the VCR would be "the Boston Strangler" to the movie industry, home video sales for Hollywood were bigger than box office sales. Technology isn't anti-content creator -- it opens up new and greater opportunities. The focus shouldn't be on figuring out who has to "give up" what for "balance" but to seek out a scenario that is more likely to increase the opportunity for everyone (whether or not everyone grasps the opportunity may be a different story).

Thus, the key focus should be on what kinds of things should be in any copyright reform proposal that will "promote the progress" by building up those opportunities for everyone -- increasing innovation, not locking it down. That means bringing together everyone to figure out how they can help each other and the public -- not dividing them up and putting them on certain "teams."

But... this is Congress. And that's not how Congress works.

Instead, we're getting two separate hearings, one about how awesome copyright is, and another about how awesome technology is. As if those two things are in conflict.

Congress needs a fight between "this side" and "that side," preferably with each side involving giant multinational companies with giant lobbying budgets. Because, when you have a fight like that, both sides ramp up their donations to Congress to make sure "their side" is heard. Congress loves to set up fights between two big wealthy industries, because that just means more money for them. This is also why this won't be resolved any time soon (the longer you drag it out, the more money pours in).

So, it should come as no surprise at all that the next two hearings that the "Intellectual Subcommittee" have called are designed not to move the ball forward on real copyright reform, but rather to set up the "two sides" in the war. First up, next week, there will be a hearing on "Innovation in America: The Role of Copyrights." The following week? Same thing, but "the role of technology" (official title hasn't been released yet, as far as I can tell, but I've seen a few variations floating around, that basically just involve substituting "technology" for "copyrights") -- as if technology is inherently "anti-copyright."

The end result will be lots of home team cheering from people who solidly identify with one side or the other, coupled with ragging on "the other side." But there will be little or nothing to actually look at how those two "sides," along with many others, can come together to best serve the public benefit in terms of furthering the incentives to have important cultural and intellectual works created, experienced and shared.

Sorry but the "public" can only donate in small amounts!!

The public is a vast non-cohesive entity that votes on Dance talents, and Voice performances and donates their spare buck when they are confronted with an aggressive campaigner.

The content providers spend almost as much to protect their illegal monopoly as 100 million voters do. So who do you think the bought and paid for Congress will vote with?

Even I can look at the world and say hey this dufus is going to help me earn 10 times what I can get in a normal job and for that help I will do what I can to help them. You scratch my ass and I will scratch yours. Not an unreasonable request.

NEITHER of the sides are going to serve the public interest.

The public's only role is to pay. You're arguing as if win-win for creators and grifters is necessarily good for the public. While I'm mildly surprised that they don't as yet visibly conspire, it's only due to inherent conflict between creators who pay and grifters who just want to skim.

Here's a Pollyanna assertion: "Each and every major innovation from the tech world has resulted in greater opportunity for content creators." -- NO, ONLY IF EXISTING LAWS ARE FOLLOWED! If piracy increases -- aided by technology including Google to lead pirates to the treasure -- then the whole basis of recorded entertainment industries collapses. You never take the ongoing breakdown of morality, specifically respecting other people's property rights, into consideration. -- Well, not except to cheer when favors your grifter pals like Kim Dotcom getting money by selling other people's intellectual property.

Anyhoo, in any fight, I'd necessarily favor those who create content over grifters who divert the revenue streams.

Re: NEITHER of the sides are going to serve the public interest.

"Each and every major innovation from the tech world has resulted in greater opportunity for content creators." -- NO, ONLY IF EXISTING LAWS ARE FOLLOWED!

Didn't the MPAA try to outlaw the same technology that allowed it to create the home video market (i.e. the VCR)?

Didn’t the RIAA try to outlaw (with varying degrees of success) the various filesharing programs/formats that would end up both ‘inspiring’ (read: forcing) the RIAA to enter the digital delivery racket and allow artists from all over the world to distribute music for practically nothing?

Numerous major innovations fell into legal grey areas upon their ‘birth’ and ‘broke the law’ by flaunting those grey areas until the courts deemed them legal.

If piracy increases -- aided by technology including Google to lead pirates to the treasure -- then the whole basis of recorded entertainment industries collapses.

(1.) Google does not aid piracy, at least not in the sense that it actively forces users of its search engine to view piracy-related results to searches for legal content. (As a test, I searched for "Pacific Rim movie"; none of the results on the first page link to The Pirate Bay or any other filesharing site.)

(2.) ‘The whole basis of recorded entertainment industries’ would not collapse if piracy increased. Movies remain a profitable venture, as evidenced by record box office numbers even in the wake of rampant, worldwide piracy. Oh, and I'd consider the creation of new content as the ‘basis of recorded entertainment industries’. As I hope you can tell just from your own personal experience: piracy hasn’t slowed down or stopped the creation of new content in any such industry.

You never take the ongoing breakdown of morality, specifically respecting other people's property rights, into consideration.

You never take the ongoing breakdown of the public domain, specifically how the government continues to shrink the amount of content that enters the public domain every year at the whims of those ‘recorded entertainment industries’, into consideration.

I'd necessarily favor those who create content over grifters who divert the revenue streams.

How about a fight between the ‘recorded entertainment industries’ and the general public, pirate and legal consumer alike — who do you favor in that particular melee?

Re: Re: NEITHER of the sides are going to serve the public interest.

"You never take the ongoing breakdown of morality, specifically respecting other people's property rights, into consideration."

You never take the ongoing breakdown of the public domain, specifically how the government continues to shrink the amount of content that enters the public domain every year at the whims of those ‘recorded entertainment industries’, into consideration.

The shit that's being looted is not, for the most part, something most people could argue should be in the public domain. It's shows like "Game of Thrones". So stop pretending copyright duration is a driving factor.

Re: Re: Re: NEITHER of the sides are going to serve the public interest.

The shit that's being looted is not, for the most part, something most people could argue should be in the public domain. […] [S]top pretending copyright duration is a driving factor.

I never said the most-pirated content out there should fall into the public domain. Please don't put words into my mouth that didn’t come from there first.

I said that you never consider the public domain when arguing in favor of copyright. You want to talk about morality, but you never seem to want to discuss the ‘morality’ of the government and the major content companies colluding to remove one the most important facet of copyright law by extending copyright to the point where said facet may as well not exist.

Re: Re: Re: NEITHER of the sides are going to serve the public interest.

The shit that's being looted is not, for the most part, something most people could argue should be in the public domain. It's shows like "Game of Thrones". So stop pretending copyright duration is a driving factor.

Oh, I disagree.

The duration of copyright is certainly overlong at the moment, but the problems in the system, and the need for reform, do not center only around duration.

Remember: the goal of copyright is to increase the number of works created and published, and also to ensure that those works are in the public domain as rapidly and as fully as possible.

That is, the scope of copyright, as well as duration. It's not enough to simply have copyrights completely terminate as rapidly as possible, we must also shrink the exclusive rights that comprise copyright during the term.

Which is why my number two reform (number one is returning to a strict system of formalities) would be to remove the embarrassment of copyright from the ordinary lives of ordinary people so that they could engage in their normal behavior and not have to worry about infringement. Specifically, otherwise infringing activity engaged in by a natural person, if not commercial in nature, would be non-infringing. Mere infringement would be defined as being non-commercial (though this is already clear from implication); to render it commercial would take something more, such as if the behavior occurs in conjunction with the additional exchange of money, goods, or services. Selling infringing copies would be infringing. Ad-supported file-sharing sites would be infringing. Requiring an exchange of works (e.g. upload/download ratios) would be infringing. Accepting tips or donations would be infringing. Using access to works as a draw for other commercial activity (e.g. selling t-shirts) would be infringing.

OTOH, downloading an episode of Game of Thrones from a pirate website that was operated at a loss, didn't accept donations, didn't sell anything, didn't carry ads, didn't require anything of its users, and was run by an individual or group of individuals in their own capacities, would be A-OK.

Piracy on this level by individuals, not acting commercially, is going to happen. It is not considered objectionable or immoral by most people. Therefore, it should be legalized. It's much like Prohibition: when it was ended, states still had the authority to regulate bars, brewers, and the like, but didn't interfere with regular people, who could engage in activity that a few busybodies thought was bad for them, but which was really none of their business.

If it turns out that this has more negative effects than positive, perhaps we should readdress the issue. That it might have some negative effects is likely, but I think it would overall be a good thing for fans who enjoy and share works amongst themselves out of the goodness of the hearts and the desire to help their fellows, to not have to worry about life-destroying lawsuits and the like. So long as this good outweighs the bad, it's okay.

Re: Re: Re: NEITHER of the sides are going to serve the public interest.

Re: NEITHER of the sides are going to serve the public interest.

Oh, and one more thing I forgot to tackle in my previous comment…

The public's only role is to pay.

You seem to forget that the people who create content -- the writers, the musicians, the actors, directors, painters, illustrators, and so on -- come from the general public. Copyright, in theory, allows the general public to benefit by both allowing content creators to hold a ‘limited’ monopoly on the distribution of content and pushing content into the public domain so that the general public can consume it and newer content creators can use it (in part or in whole) without anyone generally having to go to court over it.

I say ‘in theory’ because the governments of the world have altered and extended copyright far beyond its initial scope to all but prevent the general public (the only true beneficiaries of copyright law) from using and perusing older content without paying massive fees for it.

The public does far more than ‘pay’, and if you don’t realize that, I think you need to ask yourself why.

Re: NEITHER of the sides are going to serve the public interest.

OOTB is making straw men, ad hominem, and false arguments again, what a surprise!

I'm so sick and tired of hearing your endless tirade on how the law supports the idea that the content industry is owed a government-secured way to make a profit. I have news for you: YOU ARE COMPLETELY AND CATEGORICALLY WRONG! The only reason copyright is supposed to exist is to offer a carrot to get the authors, artists, and the like to provide a continuous stream of new works that can be added to the public domain so that such a library of culture and knowledge will expand, enhance, and progress humanity; to wit, the internet has lowered the barrier to access of knowledge and culture.

The internet actually accomplishes exactly what the copyright clause set out to do, grant ubiquitous access to information that uplifts society as a whole rather than a few privileged elites that have the ways and means to afford it. The unfettered sharing, remixing, and publishing of new works of amateurs and professionals alike is what we've been trying to accomplish for over two centuries. Now that we have it, you want to whine and complain that these laws are about upholding property rights and protecting the businesses that create such property.

Copyright does not exists for the purpose of ensuring that an artist has a job to go to. Get that misconception out of your head right now. There is no reason to create laws to support a favored business model, none. If you can't make a business without copyright, then you didn't deserve to have that job/business in the first place. It is the height of arrogance to claim that out of all other industries, this one must be secured and protected by government granted rights that infringe and retard the liberties that are self-evident and natural to every living person on Earth. You demand laws that steal our rights away from us and then complain that pirates are stealing your property. Nobody is stealing a thing from you.

If you publish it, you're giving it away. Period. There isn't a word you can utter nor an idea you can express that doesn't become part of the library of human culture without limit. Every idea spreads itself until it has taken space inside every living mind out there. You can't own that. You can't keep it from anyone. It will get out and it will force itself into the mind of every person. It's not your property, it never was. So don't get indignant about people copying files and sharing them online. They aren't stealing from anyone. In fact, it the artist who is a fool to think they can do all that creative work and expect to make it back selling something that is in no way their property.

All of our content is built on the creative effort of thousands of human generations. It belongs to our ancestors as much as all of us. You have no right to claim property rights over it and complain that people are "stealing" it. Quite the contrary, they're taking back what you stole (I'm looking at you Disney) from us.

Re: Re:

therefore, regardless of whether it's the right thing to do, Congress will go back into decide which roads to take, which of these two sides to vote for and yet again, the whole idea of copyright will be ignored, as are, as usual, the very people that should be having the most notice taken of ,the public. this is going to be another complete waste of time and all that will actually be achieved is a lot of money thrown at certain senators to get them to vote the way the 'back scratcher' wants them to. yet again, the opportunity to really make copyright do what it is supposed to do, what it was supposed to have done all along, will be thrown away with all senators saying, 'Well, that's that sorted out for another 100years or so!' obviously, the lobbyists will be running around like headless chickens and the public, who not only have no representation, have no one putting the true copyright case forward and no money to be able to do so, dont even get the chance to have someone with sense state their case. i sincerely hope that those who just want to get this out of the way are remembered at election time because, par for the course, they will expect to be voted back into office by the very people they continuously 'sail down the river'!!

Creators?

So, the first concern, obviously, is that if the focus is on "content creators" on one side and "the tech industry" on the other, the public is not represented.

What is happening is that on one side are the old school technology companies that is the companies represented by the RIAA and MPAA etc., and on the other are the new school technology companies represented by ?? Google/YouTube? These sides will be arguing which is the best way to support creators. What will be almost totally missing is any input from creators, although a few who have made it big under the old school industries may be wheeled out; and as you said any input from the audiences for creative works.

The argument is likely to be reduced to one between old school gatekeepers, and what appears to be an anarchistic collection companies who can only agree that copyright is a problem, and argue please reduce the regulations and control over content and its uses.on the other hand, the gatekeepers have the most powerful and persuasive arguments, at least as far as politicians are concerned, we can be subject to reasonable regulation, and also exercise reasonable control over what is published, oh and by the way we understand how campaign funding works.

At this point, I find myself rooting for the maximalists to get what they want. The reason is that I've become convinced that the only solution to copyright and patents is total gridlock that collapses the system.

I don't see incremental improvements being possible, and anything short of elimination will only be temporary anyway--one of the founders speeches notes that any such system will inevitably grow.